KSB

14-20526 O'Dell (Doc. # 23)

In Re O'Dell, 14-20526 (Bankr. D. Kan. Aug. 22, 2014) Doc. # 23

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SO ORDERED.
SIGNED this 22nd day of August, 2014.


___________________________________________________________________________
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS

In re: Case No. 14-20526
Teresa L. O’Dell, Chapter 7

Debtor.

Order Denying Motion to Reopen

Debtor filed a chapter 7 bankruptcy petition on March 14, 2014,1 and the
Chapter 7 Trustee assigned to her case entered a no-asset notice shortly thereafter, on
April 17, 2014.2 Debtor received a discharge on June 25, 2014,3 and her bankruptcy
case was closed. About a month after her discharge was entered, on July 31, 2014,
Debtor filed a motion to reopen her case, explaining that she had inadvertently omitted
certain medical and utility debts totaling $9400.79 from her original petition.4

1 Doc. 1.
2 Seedocket entry dated April 17, 2014 (Chapter 7 Trustee’s Report of No


Distribution).

3 Doc. 11.

4 Doc. 14.

Case 14-20526 Doc# 23 Filed 08/22/14 Page 1 of 3


Under 11 U.S.C. § 350(b), a court should only reopen a case “to administer

assets, to accord relief to the debtor, or for other cause.” In a no-asset chapter 7 case,

however, no relief can be given to a debtor by reopening case to add prepetition debt

“because reopening affords no more relief to the debtor than the debtor already has

obtained by virtue of the discharge under Section 727.”5 As described by the Tenth

Circuit Court of Appeals in Watson v. Parker (In re Parker):6

Pursuant to § 727(b), the Debtor receives a discharge from all debts thatarose before the date of the order for relief under Chapter 7, regardlessof whether a proof of claim based on any such debt or liability is filed,
unless an exception in 523(a) applies. Under § 523(a)(3)(A), a claim willnot be discharged if it was neither listed nor scheduled and the creditordid not have notice or actual knowledge of the case so that the creditorcould timely file a claim. Here the bankruptcy court correctly found that
§ 523(a)(3)(A) does not apply because the Debtor's Chapter 7 case was ano asset case with no claims bar date set; . . . Because § 523(a)(3)(A) does
not apply, unless [the creditor] can establish that the claim wasnondischargeable under one of the exceptions referenced in § 523(a)(3)(B)
[the creditor’s] Claim was discharged by operation of law under § 727(b).

5 In re Cerrudo, 214 B.R. 500, 502 (Bankr. N.D. Okla. 1997) (“[I]n a no-assetchapter 7 case, unscheduled debts are not excepted from discharge by virtue ofSection 523(a)(3) unless the debt would be non-dischargeable under one of theintentional tort exceptions contained in Section 523(a)(2), (4), or (6). Pursuant toSection 727(b), an unscheduled debt in a no-asset chapter 7 case is dischargedunless the debt could have been found to be non-dischargeable under theintentional tort exceptions if the creditor had been given an opportunity to timelyseek such relief. For these reasons, it is generally a useless exercise to reopen a caseto schedule an unscheduled debt, because reopening affords no more relief to thedebtor than the debtor already has obtained by virtue of the discharge underSection 727.”).

6 313 F.3d 1267, 1268–69 (10th Cir. 2003) (quoting Watson v. Parker (In re
Parker), 264 B.R. 685, 694 (10th Cir. BAP 2001)); see also Judd v. Wolfe, 78 F.3d
110 (3d Cir.1996) (and cases collected therein); Stone v. Caplan, 10 F.3d 285, 289
(5th Cir.1994); Beezley v. California Land Title Co., 994 F.2d 1433 (9th Cir.1993).

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Case 14-20526 Doc# 23 Filed 08/22/14 Page 2 of 3


As such, there is no cause to reopen Debtor’s case. No relief can be given here because
this is a no-asset case and reopening would afford debtor no more relief than she has
already received.

Debtor’s motion to reopen is denied. The prepetition debts Debtor seeks to add
to her case, to the extent dischargeable if they had been listed on her chapter 7 petition
when filed, are discharged anyway.

IT IS SO ORDERED.

# # #

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Case 14-20526 Doc# 23 Filed 08/22/14 Page 3 of 3

12-40210 Church (Doc. # 114)

In Re Church, 12-40210 (Bankr. D. Kan. Jun. 12, 2014) Doc. # 114

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SO ORDERED.
SIGNED this 11th day of June, 2014.


___________________________________________________________________________
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS


In re: Case No. 12-40210
Lisa Marie Church, Chapter 13
Debtor.

Order Continuing Debtor’s Motion for Entry of Discharge

Debtor Lisa Marie Church’s attorney has requested this Court abrogate the
requirement in this division that debtors file and serve on creditors a motion for entry
of discharge upon completion of plan payments in Chapter 13 bankruptcy cases.
Because the Court finds that both the Bankruptcy Code and Federal Rules of
Bankruptcy Procedure generally require notice of such a motion to creditors with an
opportunity to object, and a hearing if an objection is filed, this request is denied.

I. Background and Procedural Facts
Debtor’s Chapter 13 bankruptcy petition was originally filed in the Kansas City
division of this court in October 2009, as a joint case with her then-husband, Jeffrey

Case 12-40210 Doc# 114 Filed 06/11/14 Page 1 of 10


Church.1 About two years later, Debtor and her husband divorced, and Debtor’s case
was transferred to the Topeka division.2 On March 6, 2014, the Clerk of the Court
issued its routine Notice to Chapter 13 Debtor(s) to Verify Filing of Statement of
Completion of Personal Financial Management Course (“FMC”).3 This Notice was the
Court’s third reminder to Debtor that if she failed to file the statement, she would not
receive a discharge, notwithstanding any later completion of plan payments.4

Soon thereafter, on March 10, Debtor did complete the course, but did not
contemporaneously file the required Certificate to demonstrate that fact.5 On March
27, she filed a “Certification of Compliance and Motion for Entry of Discharge,”6
certifying that “[all] payments have been completed under the terms of Debtor’s
confirmed Chapter 13 Plan;” the motion omitted any reference to her completion of the
required course.

The Trustee objected to Debtor’s motion, claiming it was premature as the case

1 Doc. 1.

2 Doc. 33; Doc. 37; Doc. 43.

3 Doc. 100.

4 Doc. 7 was the first such notice, dated October 20, 2009. Doc. 18 was the second
such notice, dated April 19, 2010. Doc. 100, dated March 6, 2014, is the third notice. Theseredundant notices have been formulated because the Court never wishes to have a debtor
complete a plan but be denied a discharge because of failure to complete the myriadprocedural steps required by Congress.

5 Debtor finally filed that Certificate of Debtor Education, whereby HummingbirdCredit Counseling and Education certified Debtor had completed the required course, onMay 20, 2014. See Doc. 112.

6 Doc. 104.

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Case 12-40210 Doc# 114 Filed 06/11/14 Page 2 of 10


was “not yet complete.”7 At the hearing that followed, Debtor’s attorney admitted he
filed the motion prematurely and “inadvertently,” since payments were not complete
and Debtor had failed to file her FMC certificate.8 Notwithstanding the Trustee’s
willingness to simply continue the hearing on the Debtor’s Motion until such time as
she had completed plan payments and filed her FMC certificate, Debtor’s attorney
wished to instead advance the argument that he was either not required to file the
Motion for Entry of Discharge that was already on file, and of which he had already
provided notice, or that he was not required to give notice of that Motion to Debtors’
creditors.

Although the issue is clearly moot here, because counsel has already done what
he claims he is not required to do—send notice to the matrix, the Court asked for the
parties to brief the issue so that it could consider this potentially recurring issue.
Briefing is complete, and this side issue is ripe to allow the Court to provide guidance
to the parties.

II. Analysis
There is no dispute that Debtor seeks a discharge under 11 U.S.C. § 1328(a),9
which states in pertinent part:

7

 Doc. 105.

8

 Doc. 113.

9 All citations are to the Bankruptcy Code, 11 U.S.C. 101 et seq. Due to an apparentmis-cite, both parties initially discussed a discharge under subsection (b) of § 1328, whichdeals with so-called “hardship discharges.” The parties appear to now agree that dischargein this case is sought under § 1328(a).

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Case 12-40210 Doc# 114 Filed 06/11/14 Page 3 of 10


. . . as soon as practicable after completion by the debtor of allpayments under the plan, and in the case of a debtor who is required bya judicial or administrative order, or by statute, to pay a domestic supportobligation, after such debtor certifies that all amounts payable undersuch order or such statute that are due on or before the date of the
certification (including amounts due before the petition was filed, butonly to the extent provided for by the plan) have been paid, unless thecourt approves a written waiver of discharge executed by the debtor afterthe order for relief under this chapter, the court shall grant the debtor adischarge of all debts provided for by the plan or disallowed under section502 of this title . . .

In order to receive a discharge under § 1328(a), debtors must complete all payments

due under their Chapter 13 plans and file the appropriate certification concerning

domestic support obligations. Additional prerequisites to receiving a discharge are

found in § 1328(f), which sets limits on the time periods for receiving a discharge,10 and

in § 1328(g), which requires that a debtor complete an instructional course in personal

financial management.11

As noted, Debtor admits she did not qualify for discharge under § 1328(a) when

she filed her motion because she had not yet completed all payments required by her

chapter 13 plan. Once Debtor completes her plan payments, however, the Trustee

apparently has no opposition to Debtor’s motion for discharge.

10 § 1328(f) (“[T]he court shall not grant a discharge . . . if the debtor has received adischarge– – (1) in a case filed under chapter 7, 11, or 12 of this title during the 4-yearperiod preceding the date of the order for relief under this chapter; (2) in a case filed underchapter 13 of this title during the 2-year period preceding the date of such order.”). TheTrustee does not argue this subsection controls here.

11 § 1328(g)(1) (“The court shall not grant a discharge under this section to a debtorunless after filing a petition the debtor has completed an instructional course concerningpersonal financial management described in section 111.”). Because Debtor has finally filedthe required certification, the Trustee no longer contends this subsection controls here.

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Debtor’s attorney, however, raises a larger issue—he believes that no debtor
should have to ever file a motion for discharge, or that the Trustee should not be
allowed to object to the motion—contending that the motion “is a nuisance and a waste
of time and resources.” Counsel argues, as a practical matter, that many of the notices
sent to the mailing matrix at the end of a case are returned as undeliverable, as
creditors are sold, merge, or change their addresses over the course of a chapter 13
plan. Debtor’s attorney contends, as a legal matter, that neither the Bankruptcy Code
nor the Federal Rules of Bankruptcy Procedure require a debtor to file such a motion,
or notify creditors, and that this Court should so decree to save time and money for
future debtors.

The Trustee responds by citing to § 1328(h), which contains additional
restrictions to granting a discharge. It states that

The Court may not grant a discharge under this chapter unless the court

after notice and a hearing held not more than 10 days before the date

of the entry of the order granting the discharge finds that there is no

reasonable cause to believe that – –

(1) section 522(q)(1) may be applicable to the debtor; and
(2) there is pending any proceeding in which the debtor may befound guilty of a felony of the kind described in section522(q)(1)(B).12
Under this subsection, a discharge cannot be granted until the Court determines the
applicability of § 522(q)(1). Section 522(q)(1), added to the Code with the broad
BAPCPA revisions in 2005, places a monetary cap on a residence, burial exemptions

12 Emphasis added.

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Case 12-40210 Doc# 114 Filed 06/11/14 Page 5 of 10


and homestead exemptions when certain qualifying factors are met.13 Subsection (h),

therefore, requires the Court to make a determination regarding the applicability of

§ 522(q) before it can enter a discharge. But no Court can make this determination

without assistance from debtors, trustees, and creditors. The Court simply does not

have the facts necessary to support such a determination without input from these

parties. And, more pertinent to the discussion at hand, the way these parties receive

notice that the Court needs to make such a determination is by providing those

interested parties with notice and an opportunity to object, which is provided when a

13 The text of § 522(q) reads:
(q)(1) As a result of electing under subsection (b)(3)(A) to exempt property underState or local law, a debtor may not exempt any amount of an interest inproperty described in subparagraphs (A), (B), (C), and (D) of subsection (p)(1)
which exceeds in the aggregate $155,675 if-


(A) the court determines, after notice and a hearing, that the debtor hasbeen convicted of a felony (as defined in section 3156 of title 18), whichunder the circumstances, demonstrates that the filing of the case was anabuse of the provisions of this title; or
(B) the debtor owes a debt arising from-(
I) any violation of the Federal securities laws (as defined insection 3(a)(47) of the Securities Exchange Act of 1934), any Statesecurities laws, or any regulation or order issued under Federalsecurities laws or State securities laws;
(ii) fraud, deceit, or manipulation in a fiduciary capacity or inconnection with the purchase or sale of any security registeredunder section 12 or 15(d) of the Securities Exchange Act of 1934or under section 6 of the Securities Act of 1933;
(iii) any civil remedy under section 1964 of title 18; or
(iv) any criminal act, intentional tort, or willful or recklessmisconduct that caused serious physical injury or death toanother individual in the preceding 5 years.
(2) Paragraph (1) shall not apply to the extent the amount of an interest inproperty described in subparagraphs (A), (B), (C), and (D) of subsection (p)(1) isreasonably necessary for the support of the debtor and any dependent of thedebtor.
(internal footnote omitted).

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Case 12-40210 Doc# 114 Filed 06/11/14 Page 6 of 10


debtor schedules a hearing on a motion for entry of discharge, if anyone objects.

Debtor’s attorney argues that no debtor should be burdened with providing this
notice, and further argues that it is unlikely creditors would have access to § 522(q)
information. From those arguments, Debtor’s attorney concludes that providing notice
to all creditors is therefore wasteful in these circumstances. But the Code requires that
the Court make this determination. Although it is true that generally the motion for
discharge, and the § 522(q) certifications made therein, go unchallenged, the Court has
no ready access to this kind of information, and cannot easily determine on its own
whether a debtor’s certification should be challenged. The only way to potentially
discover whether, for example, a debtor has been convicted of an intentional tort that
caused physical injury, is to notify all creditors and see if any creditor steps up to say
the debt owed them arose from those circumstances. The same applies to each of the
categories contained in § 522(q). And who would be better than the creditors a debtor
presumably listed in her schedules, hoping to discharge those debts, to provide the
value of debtor’s homestead, or information about a debtor’s conviction history,
securities violations, etc.?

In addition, as the Trustee notes, Federal Rule of Bankruptcy Procedure
2002(f)(11), which was added in 2008, also requires notice by mail of “the time to
request a delay in the entry of discharge under §§ 1141(d)(5)(C), 1228(f), and 1328(h).”
Rule 2002(f)(11) requires that this notice be given to “the debtor, all creditors, and

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Case 12-40210 Doc# 114 Filed 06/11/14 Page 7 of 10


indenture trustees.”14 And the notice that is required can either be given by “the clerk,
or some other person as the court may direct.” In this district, the debtor has been
directed to give this notice by filing, and serving notice of, the motion for entry of
discharge.

Debtor’s attorney does not seriously dispute that Rule 2002(f)(11) requires notice
to creditors; he merely argues that such rule is not fair. This argument is not well
taken.

First, Debtor is the party seeking a discharge. It is wholly logical that Debtor be
the one required to take the necessary steps (and incur the expense, unfortunately) to
obtain that discharge. Second, Debtor is the party required to create a creditor matrix
at the beginning of the case. It again is logical for Debtor to use the matrix she created
(and updated throughout the case if she is advised that her own creditor addresses are
defective or no longer valid) to send notice of her motion for entry of discharge, as she
has easy access to the addresses. Burdening the Court, and by extension, the
taxpayers, with the cost of such a notice to creditors is untenable.

Both the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure
require notice prior to entry of discharge. Although oftentimes that notice to creditors
will not yield an objection, the Code and Rules mandate that opportunity to object be
provided.15 While the attorney’s desire to keep costs low for his future clients is both

14 Emphasis added.

15 As the commentary to Federal Rule of Bankruptcy Procedure1007(b)(8)—another Rule dealing with the § 522(q) proscriptions—states, creditors must begiven the opportunity to challenge a debtor’s § 522(q) certification. See Fed. R. Bankr. P.

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Case 12-40210 Doc# 114 Filed 06/11/14 Page 8 of 10


admirable and understandable, reduction of expenses cannot be achieved through a
degradation of the requirements Congress has imposed.16

III. Conclusion
The Trustee requests that the Court overrule Debtor’s Motion for Entry of
Discharge because even Debtor admits it was prematurely filed since she had not
finished her plan payments or filed her FMC certificate when she filed the motion.
Alternatively, the Trustee requests continuance of Debtor’s Motion for Entry of
Discharge until such time as the Trustee dockets a Notice of Completion of Plan
Payments. The Court elects to continue Debtor’s Motion to a hearing on July 1, 2014,
at 9:00 a.m., at which time the issue will be whether the Motion is still premature. If
the Trustee, the only objecting party in interest, believes Debtor has completed all
steps to obtain a discharge by that date, he may elect to place the matter on the “nocall”
list, with Debtor submitting the agreed order.

Although Debtor has already filed and served on her creditors the motion for
entry of discharge upon completion of plan payments, her request for a declaration that
she need not similarly notify her creditors in any future cases she may file is denied.17

1007, 2008 Amendments, cmt. to subdivisions (b)(3) to (b)(8) (“Creditors receive noticeunder Rule 2002(f)(11) of the time to request postponement of the entry of the discharge topermit an opportunity to challenge the debtor’s assertions in the Rule 1007(b)(8) statementin appropriate cases.”).

16 The Trustee cites examples from other districts where a motion for entry ofdischarge is required, and calls the practice “prevalent nationwide.”

17 Before ultimately praying for a complete bar, Debtor’s attorney seemed to suggesta lesser remedy—that when a debtor is not exempting the kinds (and amounts) of propertylisted in § 522(q), that a debtor should not have to mail notice to the entire matrix because §

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Case 12-40210 Doc# 114 Filed 06/11/14 Page 9 of 10


It is so ordered.

# # #


1328(h) does not come into play. An analogous situation is found in Fed. R. Bankr. P.
3015(g), when a debtor can file a motion to obtain permission to limit notice of a modifiedplan only to those creditors impacted by the modified plan. Although nothing similar isprovided in the Rules related to motions for entry of discharge, if a debtor was claimingnone of the exemptions contained in § 522(p)(1), such that a contest about property valuesor the debtor’s criminal or other history would never come into play, the Court may considerentertaining a motion to limit notice of the motion for entry of discharge, if accompanied bya sworn declaration or affidavit signed by the debtor, swearing that he does not seek toexempt any of the property listed in § 522(p)(1). This is not the case to decide if such anexception is appropriate, both because the notice has already been provided and becausethis Debtor has claimed one of the exemptions listed in § 522(p)(1).

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Case 12-40210 Doc# 114 Filed 06/11/14 Page 10 of 10



14-06024 Wieland v. Albadawi (Doc. # 10)

Wieland v. Albadawi, 14-06024 (Bankr. D. Kan. Apr. 9, 2014) Doc. # 10

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SO ORDERED.
SIGNED this 9th day of April, 2014.

 

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS


In re:
Charif M. Albadawi, Case No. 12-23050
Chapter 7
Debtor.

Richard A. Wieland,
Office of U.S. Trustee,
Plaintiff, Case No. 14-06024
v. Adversary Proceeding
Charif M. Albadawi,
Defendant.

Order Denying Defendant’s Motion to Dismiss

The United States Trustee, Richard A Wieland (“U.S. Trustee”), filed this
adversary proceeding against Defendant/Debtor Charif M. Albadawi for revocation of
discharge under 11 U.S.C. §§ 727(d) and (e), alleging Defendant both concealed assets
and made a false oath and account. Defendant has moved to dismiss the U.S. Trustee’s

Case 14-06024 Doc# 10 Filed 04/09/14 Page 1 of 12


complaint in its entirety,1 arguing a settlement agreement that Defendant entered into
with the panel trustee of his chapter 7 bankruptcy case should be binding on the U.S.
Trustee. Defendant argues that the adversary complaint is prohibited because the U.S.
Trustee cannot assert the same allegations against Defendant that have already been
settled between the chapter 7 panel trustee and Defendant.

Because this Court concludes that the U.S. Trustee is not bound by the
settlement agreement made by the chapter 7 panel trustee, the Court finds no support
for Defendant’s motion to dismiss. The U.S. Trustee is a distinct entity from the
chapter 7 panel trustee, and there is no basis for concluding the U.S. Trustee was
bound by the separate actions of the chapter 7 panel trustee. The Court therefore
denies Defendant’s motion to dismiss.

I. Findings of Fact
The factual allegations of the U.S. Trustee’s complaint, which are assumed true
for the consideration of this motion, are included herein. Other procedural facts are
included from the docket of Defendant’s main bankruptcy case.

Defendant filed a voluntary petition under chapter 7 of the Bankruptcy Code,
and signed his petition, schedules, and statement of financial affairs under penalty of
perjury. Specifically, Defendant’s Schedule I stated that Defendant’s total income
consisted of food stamps, wages from part-time employment as a clerk at Dollar Value,
and contributions from family members. Defendant’s Schedule B indicated that his sole

1 Doc. 5.
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Case 14-06024 Doc# 10 Filed 04/09/14 Page 2 of 12


bank account was at the Bank of Blue Valley, account number ending in 75, with $150
on deposit as of filing. Defendant’s statement of financial affairs stated that he had no
safety deposit box holding cash or other valuables, and had not had the same for the
preceding year.

A chapter 7 trustee, Eric C. Rajala, was appointed to serve as the case trustee
for Defendant’s bankruptcy. At the creditors’ meeting held pursuant to 11 U.S.C. § 341,
Defendant reaffirmed, under oath, the accuracy and completeness of his schedules and
statement of financial affairs. Defendant was granted a discharge, and Rajala, relying
on Defendant’s representations, filed a report of no distribution. Shortly thereafter, a
final decree was signed and Defendant’s bankruptcy case was closed on April 17, 2013.

That very date—April 17, 2013—Defendant deposited $250,000 in cash into his
personal bank account (the same account discussed above, ending in 75) at Bank of
Blue Valley. The $250,000 cash deposit consisted of $100-currency bundles,
individually wrapped in “Bank of America” bundle straps. Defendant informed the
Bank of Blue Valley teller that the funds were the result of a cashed certificate of
deposit from Bank of America in 2009, and that the funds had been held in a safe
deposit box until the deposit at Bank of Blue Valley on April 17, 2013.2

Both the chapter 7 panel trustee and the U.S. Trustee requested that the Court
reopen Defendant’s bankruptcy case, and this Court entered an order reopening the

2 Defendant disputes the facts of this paragraph. As discussed below, however, theCourt accepts the allegations of a complaint as true for purposes of a motion to dismiss. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] court must accept as true all of theallegations contained in a complaint.”).

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Case 14-06024 Doc# 10 Filed 04/09/14 Page 3 of 12


case on July 19, 2013. The chapter 7 panel trustee eventually filed a motion for
intended compromise in the main bankruptcy case3 between himself, the
Defendant/Debtor, and Defendant’s wife, dated January 31, 2014, seeking to settle the
chapter 7 trustee’s demand for turnover of the alleged undisclosed $250,000.

Shortly after the motion for compromise was filed in the bankruptcy case, the

U.S. Trustee filed this adversary proceeding, stating two bases for revocation of
Defendant’s bankruptcy discharge under §§ 727(d) and (e): (1) concealment of assets
and (2) false oath and account at Defendant’s creditors’ meeting. To support his first
claim, the U.S. Trustee alleges that Defendant falsely answered questions within his
schedules and statement of financial affairs and concealed property, all with the intent
to hinder, delay, or defraud his creditors. To support his second claim, the U.S. Trustee
alleges that Defendant’s sworn testimony at his meeting of creditors was false, and
done with the intent to hinder, delay, or defraud his creditors. In addition, regarding
both claims, the U.S. Trustee alleges that Defendant’s behavior was not known, and
could not have been known, until after discharge was entered.
The day after the U.S. Trustee’s adversary complaint was filed, Defendant filed
an objection to the motion to compromise in the main bankruptcy case. Defendant
argued that the settlement agreement should be deemed a full compromise of all claims
held by both the chapter 7 panel trustee and the U.S. Trustee. Defendant stated that
he had no objection to the Court approving the motion to compromise if, and only if, it

3 Doc. 39.
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Case 14-06024 Doc# 10 Filed 04/09/14 Page 4 of 12


included the U.S. Trustee’s adversary complaint for revocation of discharge. In other
words, he objected to approval of the motion to compromise unless the main case
compromise precluded the U.S. Trustee from pursuing this adversary proceeding
seeking the revocation of Defendant’s discharge.

Shortly thereafter, Defendant filed the motion to dismiss the U.S. Trustee’s
adversary complaint that is the subject of this order. Defendant’s main basis for
dismissal is that the U.S. Trustee is bound by the settlement agreement made by the
chapter 7 panel trustee. Defendant states that “[t]he U.S. Trustee is bound by the acts
of the Chapter 7 Trustee, and the U.S. Trustee . . . cannot assert the same allegations
against the Debtor that have been settled.”4 The motion to compromise in the main
bankruptcy case has been stayed pending resolution of this motion to dismiss.

This matter constitutes a core proceeding over which the Court has the
jurisdiction and authority to enter a final order.5

II. Analysis
A. Standards for Motions to Dismiss
Although Defendant never states the basis for his motion to dismiss, or argues
legal standards for dismissal within his motion, the motion is presumably brought
under Federal Rule of Civil Procedure 12(b)(6), which permits a motion to dismiss for

4 Doc. 5 ¶ 8.

5 See 28 U.S.C. § 157(b)(2)(J) (stating that objections to discharge are coreproceedings); § 157(b)(1) (granting authority to bankruptcy judges to hear core proceedings).

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Case 14-06024 Doc# 10 Filed 04/09/14 Page 5 of 12


“failure to state a claim upon which relief can be granted.”6 The requirements for a
legally sufficient claim stem from Rule 8(a), which requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.”7 To survive a
motion to dismiss, a complaint must present factual allegations, that when assumed
to be true, “raise a right to relief above the speculative level.”8 The complaint must
contain “enough facts to state a claim to relief that is plausible on its face.”9 “[T]he
complaint must give the court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these claims.”10 The Court must accept the
nonmoving party’s factual allegations as true and may not dismiss on the ground that
it appears unlikely the allegations can be proven.11

B.
Is the U.S. Trustee Bound by the Settlement Agreement of the
Chapter 7 Panel Trustee?
Defendant’s motion to dismiss is based entirely on the assertion that the U.S.

6 Rule 12 is made applicable to adversary proceedings via Federal Rule ofBankruptcy Procedure 7012(b).

7 Rule 8 is made applicable to adversary proceedings via Federal Rule ofBankruptcy Procedure 7008(a).

8 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

9 Id. at 570. The plausibility standard does not require a showing of probability thata defendant has acted unlawfully, but requires more than “a sheer possibility.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). However, “mere ‘labels and conclusions,’ and ‘a formulaicrecitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specificfactual allegations to support each claim.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d
1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at 555).

10 Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

11 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

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Case 14-06024 Doc# 10 Filed 04/09/14 Page 6 of 12


Trustee is bound by the settlement agreement made by the chapter 7 panel trustee.

Defendant contends the panel trustee is the agent of the U.S. Trustee, with “express,

implied and apparent authority to bind the U.S. Trustee.”12 Defendant argues,

apparently as a policy matter, that the U.S. Trustee must be bound by the settlement

agreement between Defendant and the chapter 7 panel trustee, “or literally every

settlement with a panel Chapter 7 Trustee will need to be questioned which will

increase the costs of every Chapter 7 case.”13

Defendant’s motion, however, cites no legal support for his agency theory, and

this Court can find no support in the case law. To the contrary, the U.S. Trustee and

the chapter 7 panel trustee are two separate entities. Facing a very similar factual

scenario, wherein a debtor challenged a U.S. Trustee’s adversary proceeding based on

a prior settlement with a panel trustee, one bankruptcy court succinctly stated:

Debtor’s assumptions are based largely, if not entirely, upon Debtor’sassumption that the U.S. Trustee and the Chapter 7 Trustee are thesame entity and that the U.S. Trustee’s Office is therefore bound by anasserted agreement between Debtor and the Chapter 7 Trustee. Thisassumption is incorrect. One of the duties of the U.S. Trustee is to

12 Doc. 9 at ¶ 12. Defendant never actually discusses his agency theory at all.
Presumably he does not contend there is an express agency between the U.S. Trustee andthe panel trustee, as an express agency requires an express grant of agency from a principal
to an agent. See, e.g., BancOklahoma Mortgage Corp. v. Capital Title Co., Inc., 194 F.3d
1089, 1104 (10th Cir. 1999). But even an implied agency relationship requires “actualauthority granted implicitly by the principal to the agent [that] is often inferred from aprior course of dealing between the alleged principal and the agent,” id. at 1105, none of
which factors are addressed by Defendant. And finally, an apparent agency relationship isonly found when a “principal’s acts lead others to believe the agent possesses authority toact on the principal’s behalf,” id., again, a scenario that Defendant fails to address in any
way.

13 Doc. 5 ¶ 15.

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Case 14-06024 Doc# 10 Filed 04/09/14 Page 7 of 12


supervise a panel of Chapter 7 trustees. He also appoints an interimtrustee for every Chapter 7 case. The U.S. Trustee is treated as an officerof the United States. Either the Chapter 7 trustee or the U.S. Trusteemay object to the granting of a discharge or request the Court to revokea discharge. Although the Chapter 7 trustee and the U.S. Trustee maypossess a comity of interests, they are two separate entities. 14

Additional courts analyzing other scenarios have detailed the separate status

of the U.S. Trustee and panel trustees. For example, in Curry v. Castillo (In re

Castillo), the Ninth Circuit discussed at length the current structure of the bankruptcy

trustee system, and the separate duties of the U.S. Trustee and panel trustees.15 The

Ninth Circuit noted that the “United States Trustee is the ‘watchdog’ of the bankruptcy

system, charged with preventing fraud and abuse,” and that the U.S. Trustee

establishes and supervises the panel of bankruptcy trustees, detailing the separate

functions of the panel trustees.16 Similarly, the Tenth Circuit BAP has recognized the

separate status of both entities, stating:

Panel trustees make only limited decisions. Just because panel trusteeshave some decision making power, this does not mean that they areclassified as a government agency. For example, In re Hughes Drilling
Co., 75 B.R. 196, 197 (Bankr. W.D. Okla. 1987), classified a panel trustee

14 In re Houston, Case No. 07-01798, 2008 WL 5215190, at *3 (Bankr. N.D. IowaNov. 18, 2008) (internal citations omitted) (emphasis added).

15 297 F.3d 940, 949–50 (9th Cir. 2002).

16 Id. at 950–51 (internal citation omitted). The In re Castillo decision discusses the
history and progression of the bankruptcy trustee program from common law through thecurrent bankruptcy trustee program. Id. Other more recent cases have similarly defined thescope of the duties of the U.S. Trustee and panel trustees. See, e.g., Youngman v. Bursztyn
(In re Bursztyn), 366 B.R. 353, 364–65 (Bankr. D.N.J. 2007) (discussing the scope of theduties of the U.S. Trustee and the appointment process for panel trustees). Defendant’sargument that the U.S. Trustee relies on outdated cases decided prior to the BankruptcyReform Act of 1978 is simply unfounded.

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Case 14-06024 Doc# 10 Filed 04/09/14 Page 8 of 12


as ‘a representative of the estate, not an officer, agent or instrumentality

of the United States.’17
The takeaway from these cases is that, despite the fact that the U.S. Trustee and panel
trustees sometimes work closely together, they are not the same entity.18

The only legal authority for Defendant’s agency theory is found in his reply brief.
There he cites the Fifth Circuit case, Bell v. Thornburg, 19 (and a few additional cases)
for the proposition that a chapter 7 panel trustee has “delegated authority” from the

U.S. Trustee to carry out his responsibilities, and this delegated authority from the
U.S. Trustee binds the U.S. Trustee to settlement agreements entered by the panel
trustee. The first part of Defendant’s argument is correct: as discussed above, panel
trustees do have delegated authority received from the U.S. Trustee to administer
bankruptcy cases.20 But the second part of Defendant’s argument is a leap too far.
The Bell case considered whether a chapter 13 standing trustee “acted under”
the U.S. Trustee for purposes of the federal officer removal statute of 28 U.S.C. §
1442.21 The Fifth Circuit concluded that the standing trustee did act under the U.S.

17 Olsen v. Rupp (In re Olsen), Case No. UT-98-088, 1999 WL 513846, at *4 (10thCir. BAP June 24, 1999).

18 Although admittedly in another context, the Supreme Court has also noted: “Noris the bankruptcy trustee so closely connected to the Federal Government that the twocannot realistically be viewed as separate entities.” Cal. State Bd. of Equalization v. Sierra
Summit, Inc., 490 U.S. 844, 849 (1989) (internal quotation marks omitted).

19 743 F.3d 84 (5th Cir. 2014).

20 See 28 U.S.C. § 586(a) (governing the duties and supervision powers of the U.S.
Trustee in chapter 7 cases).

21 Bell, 743 F.3d at 88.

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Case 14-06024 Doc# 10 Filed 04/09/14 Page 9 of 12


Trustee. The Fifth Circuit based this decision on two factors: (1) recent Supreme Court
guidance that the removal statute be liberally construed and (2) the current
bankruptcy trustee program, under which a chapter 13 standing trustee receives
delegated authority from the U.S. Trustee to assist the office of the U.S. Trustee.22

The Bell decision does not assist Defendant, however, because it does not go
beyond the principle that a panel trustee has delegated authority from a U.S. Trustee.
As discussed at length above, a chapter 7 panel trustee is appointed by the U.S.
Trustee to administer chapter 7 cases, and, as such, is given authority to act within the
scope of that chapter 7 case and the Bankruptcy Code. But the panel trustee and the

U.S. Trustee are separate and distinct entities. As stated in a leading treatise on
bankruptcy:

Supervision of cases with trustees must be distinguished fromsupervision of the trustees who administer the cases. The United Statestrustee supervises trustees by setting standards for case administration.
However it is not the United States trustee’s function to formally directa trustee’s action in a particular case, the trustee having fiduciaryresponsibility to others. The case trustee simply does not act as theUnited States trustee’s agent in a case. 23

Defendant’s argument seems to be that, simply by acting as a panel trustee, anything

the panel trustee does binds the U.S. Trustee from acting in any way inconsistent

therewith. But there is simply no support for this position in the case law, and a

22 Id. at 88–89.

23 1 Collier on Bankruptcy ¶ 6.11, at 6-36 (Alan N. Resnick & Henry J. Sommer eds.,
16th ed.) (emphasis added); also see id. ¶ 6.12[6], at 6-41 (“[T]he United States trustee doesnot supervise cases by directing the trustee’s actions in particular cases.”).

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Case 14-06024 Doc# 10 Filed 04/09/14 Page 10 of 12


motion to dismiss on this basis must be denied. A settlement agreement by a chapter

7 panel trustee does not automatically bind the U.S. Trustee just because the panel

trustee is appointed by the U.S. Trustee.24

III. Conclusion
The U.S. Trustee’s adversary complaint states a claim under §§ 727(d) and (e).

Defendant’s motion to dismiss must be denied, as it states no basis for dismissal of the

claims made by the U.S. Trustee. As a result, Defendant’s answer is due 14 days from

the date this order is entered pursuant to Federal Rule of Bankruptcy Procedure

7012(a), and a Scheduling Conference will be set by the Clerk.

The settlement agreement filed in the main bankruptcy case expressly states

24 Furthermore, even if a panel trustee could bind a U.S. Trustee with a settlement
agreement based on nothing more than the panel trustee’s delegated authority, it is farfrom clear that the actual settlement agreement in this case would so bind. The settlementagreement, attached as Exhibit A to Defendant’s motion to dismiss, expressly states that itis between the chapter 7 panel trustee, Defendant, and Defendant’s wife. Conspicuouslyabsent is any mention that the U.S. Trustee is involved with, or bound by, the agreement.

The parties’ briefing debates what Counsel for Defendant was told concerning the

U.S. Trustee’s position on the settlement. Defendant alleges he spoke with the paneltrustee about the U.S. Trustee’s position, but admits that the panel trustee “advised he wastold to do what he thought was appropriate.” Doc. 5 ¶ 9. The U.S. Trustee’s response to themotion to dismiss argues that Counsel for Defendant was told “that the U.S. Trustee wasnot a party to the settlement negotiations and not bound by any proposed settlement” andthat Counsel was specifically advised that “the case was under review by the U.S. Trustee’soffice.” Doc. 8 ¶¶ 16–17. Defendant disputes this exchange. But regardless of the content ofany verbal exchanges between counsel, the actual settlement agreement itself contains aclassic integration clause, labeled “Entire Agreement,” which states that the settlementagreement constitutes the entire agreement between the parties “and there are no otherunderstandings, representations, or agreements, oral or otherwise, concerning theSettlement Agreement.” Doc. 5 Exh. A ¶ 8. If consent of the U.S. Trustee was a conditionrequired by Defendant’s counsel, he could and should have required the U.S. Trustee to be aparty and signatory to the settlement agreement.
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Case 14-06024 Doc# 10 Filed 04/09/14 Page 11 of 12


that it is not effective until it receives Court approval.25 The U.S. Trustee states in
response to Defendant’s motion to dismiss that he does not object to Defendant
rescinding the settlement agreement with the chapter 7 panel trustee. The parties
must be prepared to state their positions regarding enforcement versus rescission of
the settlement agreement at the hearing on the motion to compromise set in the main
bankruptcy case on April 18, 2014, at 9:30 a.m. If the parties agree the settlement
agreement should be rescinded, the panel trustee should withdraw his motion to
approve the compromise prior to the April 18 hearing.

It is so ordered.

# # #

25 Doc. 5 Exh. A ¶ 2.

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Case 14-06024 Doc# 10 Filed 04/09/14 Page 12 of 12

13-41499 Martinez (Doc. # 45)

In Re Martinez, 13-41499 (Bankr. D. Kan. Apr. 15, 2014) Doc. # 45

PDFClick here for the pdf document.


SO ORDERED.
SIGNED this 14th day of April, 2014.

 

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS


In re:

Mary Martinez Case No. 13-41499
Chapter 13
Debtor.

MEMORANDUM AND ORDER OVERRULING DEBTOR’S OBJECTION TO
CLAIM #3, FILED BY INTERNAL REVENUE SERVICE

Debtor Mary Martinez (Debtor) objected to Claim #22, a claim for unpaid
taxes filed by the creditor Internal Revenue Service (IRS).1 Debtor argues that the
portion of the claim attributable to the 2009 tax year should be classified as a
general unsecured debt. In response, IRS argues that the 2009 taxes are entitled to
priority status because they fall within the three year “look-back” period between
the day the taxes became due and the day Debtor filed her bankruptcy petition.2
Although more than three years elapsed, IRS argues that it gets the benefit of the

1 Doc. 15.
2 Doc. 19.


Case 13-41499 Doc# 45 Filed 04/14/14 Page 1 of 8


tolling period plus an additional 90-day grace period under 11 U.S.C. § 507(a)(8)(A)
because of the automatic stay imposed due to Debtor’s previous bankruptcy filing
within the look-back period. In response, Debtor urges the Court to exercise “good
conscience and equity” to deny IRS the benefit of part of the tolling period because
she claims it violated the automatic stay during her prior bankruptcy. For the
reasons explained below, the Court overrules Debtor’s objection to IRS’s claim.

I. STIPULATION OF FACTS
The parties have stipulated to certain facts.3 Based on the stipulations, the
Court makes the following findings of fact.

Although Debtor filed a timely 2009 tax return, she failed to report certain
self-employment income. After filing the 2009 return— but before she filed her
current bankruptcy petition on October 25, 2013,4 Debtor filed a chapter 13 petition
(in 2012) that was ultimately dismissed before she received a discharge. Her 2012
bankruptcy created an automatic stay that lasted 184 days.

 IRS timely filed a proof of claim in this bankruptcy for $8,823.55,5 claiming
Debtor owes taxes for the 2009, 2011, and 2012 tax years. The claim indicates
$6,740.59 is entitled to priority status under 11 U.S.C. § 507(a)(8). Debtor filed an
objection to this claim,6 alleging the $4,959 debt claimed for the tax period ending

3 Doc. 33.

4 Doc. 1.

5 Claim 3-1.

6 Doc. 15.

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Case 13-41499 Doc# 45 Filed 04/14/14 Page 2 of 8


December 31, 2009 should be classified as an unsecured general claim instead of as

a priority claim.

II. Analysis
This matter is a core proceeding over which the Court has jurisdiction,7 and

the parties do not contest the Court’s jurisdiction. “The burden of proving

entitlement to a priority is on the person claiming priority,”8 and statutory

priorities are construed narrowly.9

IRS bases its claim on 11 U.S.C. § 507(a)(8)(A), which governs the priority of

unsecured tax claims of governmental units. That section allows IRS to maintain

priority status for:

unsecured claims of governmental units, only to the extent

that such claims are for–

(A) a tax on or measured by income or gross receipts for ataxable year ending on or before the date of the filing of thepetition–
(i) for which a return, if required, is last due,
including extensions, after three years before thedate of the filing of the petition;
(ii) assessed within 240 days before the date of thefiling of the petition, exclusive of–
(I) any time during which an offer incompromise with respect to that tax waspending or in effect during that 240-dayperiod, plus 30 days; and
(II) any time during which a stay of
proceedings against collections was in effect ina prior case under this title during that
7 28 U.S.C. § 157(b)(2)(B).

8 Isaac v. Temex Energy (In re Amarex), 853 F.2d 1526, 1530 (10th Cir. 1988).

9 Id.

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Case 13-41499 Doc# 45 Filed 04/14/14 Page 3 of 8


240-day period, plus 90 days; or

(iii) other than a tax of a kind specified in section 523(a)(1)(B) or 523 (a)(1)(C) of this title, not assessedbefore, but assessable, under applicable law or byagreement, after, the commencement of the case.
. . .
An otherwise applicable time period specified in thisparagraph shall be suspended for . . . any time during whichthe stay of proceedings was in effect in a prior case underthis title or during which collection was precluded by theexistence of 1 or more confirmed plans under this title, plus90 days.

The statute provides three possible avenues for the IRS to prove its claim has
priority status. Debtor argues that, although the IRS meets § 507(a)(8)(A)(i), the
statute should be read conjunctively, that is, with an understood “and” between
parts (i) and (ii), such that the IRS would have to meet both parts (i) and (ii) or, in
the alternative, part (iii). Under this reading, satisfying only subsection (i), as the
parties agree the IRS has done, would be insufficient.

The Court finds that, contrary to Debtor’s arguments, § 507(a)(8)(A)(i), (ii),
and (iii) should be read disjunctively—IRS must only show one of these subsections
applies to attain priority status. Although Debtor acknowledges that substantial
case law supports the proposition that these provisions should be read in the
disjunctive, and cites to no Tenth Circuit case law supporting her interpretation,
she nevertheless argues that legislative history suggests Congress might not have
intended to construe the three items disjunctively. In essence, Debtor argues that
because the statute reads “(i), (ii), or (iii),” it is reasonable to place an “and” between

(i) and (ii), which would have the practical effect of requiring IRS to show both (1)
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Case 13-41499 Doc# 45 Filed 04/14/14 Page 4 of 8


that the tax became due within three years of the petition and (2) that it assessed
the tax within 240 days of the petition. But this argument is contrary to the plain
language of the statute.

As IRS argues, drafters of statutes commonly use the form (X), (Y), or (Z)
when they mean to say (X) or (Y) or (Z), and this is a generally accepted
formulation.10 “When the term ‘or’ is used, it is presumed to be used in the
disjunctive sense unless the legislative intent is clearly contrary.”11 Debtor’s
argument that the drafters’ use of (X), (Y) or (Z) really means (X) and (Y) or (Z) is
contrary to common sense and common usage, and would certainly depart from
precedent in interpreting this statute. The Court rejects this strained reading of the
statute.

Applying the correct reading of § 507(a)(8)(A) to the stipulated facts makes
Debtor’s objection simple to resolve. The tax for the tax year 2009 was due April 15,
2010. Under the three year look-back period, tax debts owing three years from
October 25, 2013—the date of Debtor’s petition—are entitled to priority. One must

10 See, e.g., Hosack v. IRS (In re Hosack), 282 F. App’x. 309, 315 (5th Cir.
2008)(rejecting the disjunctive reading argument); Lastra v. IRS (In re Lastra), No. 121188,
2012 WL 6681739, at *4 (Bankr. D.N.M. Dec. 21, 2012)(Same). See also 4 COLLIER ON
BANKRUPTCY ¶ 507.11[2] (Alan N. Resnick & Henry J. Sommer eds., 16th ed.) (“A taxmeasured by gross income or gross receipts will be entitled to priority if the tax is for ataxable year ending on or before the date of the filing of the petition and one of three
alternative grounds has been fulfilled.”) (emphasis added); 3 NORTON BANKRUPTCY LAW AND
PRACTICE § 49:50 (3d. ed. 2013) (“Taxes on prepetition income . . . warrant eighth-prioritytreatment in three separate situations. These present alternative bases for obtainingpriority; i.e., a claimant need only qualify under any of the three to receive priority.”)
(emphasis added).

11 United States v. O'Driscoll, 761 F.2d 589, 597–98 (10th Cir. 1985).
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Case 13-41499 Doc# 45 Filed 04/14/14 Page 5 of 8


then subtract the 184 days during which the automatic stay was in effect during
Debtor’s first bankruptcy (from July 25, 2012 to January 25, 2013).12 That pushes
the cut-off date back to April 24, 2010. Finally, because the cut-off date is then
pushed back an additional 90 days pursuant to the language at the end of
§507(a)(8),13 the proper cut-off date occurs well before the date when the 2009
return was due.

Debtor makes an additional argument against permitting this priority claim;
she claims this Court should, using its 11 U.S.C. § 105(e) equitable powers, deny
one or both tolling periods. This suggestion is based on her claim that IRS willfully
violated the automatic stay during her first bankruptcy, although she declined to
prosecute such a stay violation during that case. Because IRS needs both the tolling
period from the first bankruptcy and the additional 90-day period to satisfy the
three year look-back rule, denying either tolling period would have the practical
effect of barring IRS from meeting the three year look-back rule. This would result
in IRS not receiving priority treatment for the 2009 taxes.

But the parties agreed to present this objection on stipulated facts, and there
are no stipulated facts, whatsoever, to support Debtor’s claim that IRS willfully
violated the stay in her prior bankruptcy. Fortunately, the Court need not make
any factual findings concerning the considerable discrepancy between Debtor’s

12 United States v. Richards (In re Richards), 994 F.2d 763 (10th Cir. 1993).
13 United States v. Montgomery, 475 B.R. 742 (D. Kan. 2012).
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Case 13-41499 Doc# 45 Filed 04/14/14 Page 6 of 8


allegation that IRS levied against Debtor’s wages during her first case and IRS’s
position that Debtor entered into a voluntary payroll deduction before her first
bankruptcy, but then IRS admittedly failed to release that voluntary wage
deduction until Debtor’s counsel demanded it post-filing.

Even assuming Debtor’s version of the facts is accurate—that IRS placed a
lien on Debtor’s pay during her first bankruptcy and collected $50 from each of four
pay periods while the stay was in effect, the Court would not use its equitable
powers to change the tolling period. The alleged harm ($200 of tax collection that
was relatively promptly repaid to Debtor when she brought that fact to the
attention of the U.S. Attorney) is grossly disproportionate to the amount of
sanctions Debtor effectively seeks. If the sanction request were granted, IRS would
lose priority status for $4,959.00 of its claim over what even Debtor admits was a
short-lived period. And the stay violation was apparently so minor that she made no
effort to seek damages for the stay violation when it actually occurred or during the
following months when her bankruptcy was still pending. Further, Debtor’s
description of IRS’s alleged actions does not exhibit any coercion or harassment,
which also militates against sanctioning IRS effectively almost $5,000. Even
Debtor’s version of the events do not justify denying IRS the benefit of this tolling
period. As a result, the Court rejects Debtor’s request for the Court to use its
equitable powers to eliminate the statutory tolling requirements in § 507(a)(8)(A).

Because the Court finds that the IRS has met its burden to show, by a
preponderance of the evidence, that its claim meets the requirements for priority

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Case 13-41499 Doc# 45 Filed 04/14/14 Page 7 of 8


required by § 507(a)(8)(A), and because the Court has determined that avoiding the
tolling requirements of this statute would not be a reasonable use of the Court’s
equitable powers, Debtor’s objection to claim #3 is overruled.

It is so ordered.

###

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Case 13-41499 Doc# 45 Filed 04/14/14 Page 8 of 8

BAP NM-13-046 In Re Pickel

BAP NM-13-046 In Re Pickel, Apr. 9, 2014

PDFClick here for the pdf document.


FILED

U.S. Bankruptcy Appellate Panel
of the Tenth Circuit
April 9, 2014
Blaine F. Bates

Clerk

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE TENTH CIRCUIT

IN RE JACK D. PICKEL, formerlydoing business as Officer of AlamedaLand Investment Corporation, doingbusiness as Sole Member Alameda
Virgin Islands Company, LLC,
formerly doing business asManager/Member of P.O.S.T. Land Ltd.
Company, doing business as Officer ofClub Comanche, Inc., doing business as

J. Pickel & Company, Inc.,
Debtor.

MARY BOEHM,

Plaintiff – Counter-
Defendant – Appellant,

v.
JACK D. PICKEL and ALAMEDA
VIRGIN ISLANDS COMPANY, LLC,

Defendants – Counter-
Claimants – Appellees.

BAP No. NM-13-046

Bankr. No. 12-13262
Adv. No. 12-01319
Chapter 11

OPINION*

Appeal from the United States Bankruptcy Courtfor the District of New Mexico

1

Before KARLIN, ROMERO, and HALL , Bankruptcy Judges.

KARLIN, Bankruptcy Judge.

* This unpublished opinion may be cited for its persuasive value, but is not
precedential, except under the doctrines of law of the case, claim preclusion, andissue preclusion. 10th Cir. BAP L.R. 8018-6.
Honorable Sarah A. Hall, United States Bankruptcy Judge, United States
Bankruptcy Court for the Western District of Oklahoma, sitting by designation.


Mary Boehm agreed to sell to Alameda Virgin Islands Company, LLC
(AVIC) her large share of Club Comanche (Comanche), a corporation that owned
a hotel and restaurant (Hotel) located on premium real estate on St. Croix, Virgin
Islands. After AVIC made payments totaling $550,000 of the $800,000 required,
and added $1.9 million in improvements, Boehm seems to have had a change of
heart. She decided it might be a good idea to hold on to this property after all, as
it had more than doubled in value since she sold it.

The bankruptcy court found her efforts to regain the Hotel constituted an
anticipatory repudiation of the contract. As a result, it granted AVIC’s request
for specific performance and awarded a portion of the damages it sought. Boehm
asks this court to reverse those decisions.

Because our review of the record and applicable law confirm that Boehm
repudiated the contract and caused AVIC the damages the bankruptcy court
awarded, we instead affirm.

I. BACKGROUND1
In 2007, a Virgin Islands superior court granted a money judgment against
Comanche and directed it to issue 156 shares of its stock to a third party. Until
then, Boehm 2 and her late husband owned all of the Comanche stock. As a result
of the judgment, Boehm decided to sell her remaining shares of stock to AVIC,
also a Virgin Islands entity, which was wholly owned and managed by Jack Pickel
(Pickel), the debtor.

The 2007 sale contract (Agreement) conveyed to AVIC the right to vote

447.5 shares of Comanche and to receive any and all dividends or distributions
1 Unless indicated otherwise, the basic facts not in dispute have been taken
from the bankruptcy court’s published opinion, Boehm v. Pickel (In re Pickel),
493 B.R. 258 (Bankr. D.N.M. 2013) (hereafter “Memorandum Opinion”).

2 Boehm’s son was also a party to the Agreement, but because he only owned
one share of Comanche stock and is not a party to this appeal, we refer solely toMary Boehm.

-2



with respect to those shares. In exchange, AVIC was required to pay $800,000 in
four installments; the fourth and final payment was to be $250,000 and was due
November 1, 2009. 3 Pickel also executed a non-negotiable promissory note
(“Note”) in favor of Boehm on behalf of AVIC,4 which required payments be
made to Boehm at the Hotel, since the Agreement contemplated she would
continue to live there for a few months. The Note required her to “designate in
writing” if payments should be sent to a different address. No evidence received
at trial demonstrated she ever so designated.

AVIC made the first three payments totaling $550,000, but did not pay the
final $250,000 installment on its due date. It is AVIC’s failure to timely make
this final payment that precipitated the events that are at the crux of this appeal.
The Agreement provided that AVIC “shall be deemed in default, if after ten (10)
business days after receipt of written notice of default, [AVIC] fails to cure.”5
Accordingly, one day after the final payment was due, Boehm and her daughter
drafted the contemplated written notice (Notice of Default) and delivered it to
AVIC’s counsel.

The Notice of Default erroneously stated that the last day to cure the
default was November 13, 2009, notwithstanding that the Agreement, itself,
provided a cure period of ten business days—or until November 17, 2009. 6 As a

3 Agreement at 1, ¶ 1, in Appellant’s App. at 312. The payment schedule was
as follows: $275,000 upon execution of Agreement, $25,000 on November 30,2007, $250,000 on November 1, 2008, and $250,000 on November 1, 2009.

4 Id. at 2-3, ¶¶ 4, 6 in Appellant’s App. at 313, 314. The Agreement
expressly states that it is not a sale of the stock itself, but undoubtedlycontemplates a future sale of the stock to AVIC (for one dollar) provided it doesnot default. The language suggests that when the Agreement was executed, anoutright sale of the stock could not take place for legal reasons. Id.

5 Id. at 6, ¶ 15, in Appellant’s App. at 317.

6 Although the Notice of Default actually (and accurately) stated “Alameda
has (10) business days to cure this default in accordance with paragraph 15 of the
(continued...)

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result, because AVIC received the Notice of Default on November 2, the
contractual deadline for it to cure nonpayment was actually November 17. 7 The
Notice, which is not on letterhead of any sort, provided no address where the cure
payment should be made.

Notwithstanding that AVIC had an additional four days to cure, Boehm’s
counsel delivered a letter to Pickel on November 13 purporting to terminate the
Agreement and declare it null and void (Termination Letter). The Termination
Letter demanded immediate possession of the Hotel, including turnover of the
keys to all rooms, terminated Pickel’s employment by Comanche, ordered all
employees to vacate the Hotel the same date the Termination Letter was
delivered, and terminated all corporate directors. 8 The letter further claimed that
AVIC had “no further rights.”

Pickel claims that AVIC attempted to cure the default by tendering a check
in the full amount due on November 16, but that Boehm’s counsel refused to
accept the check. He also claims he left a voice mail message for her on
November 17 and told her she could pick up the check from the Hotel that same
day. 9 Nine days later, Boehm filed an action in the Virgin Islands

6 (...continued)
Agreement,” it then erroneously required AVIC to pay the balance “by November
13, 2009[.]” See Notice of Default, in Appellant’s App. at 353 (emphasis added).


7 No one disputes November 11th was properly omitted as a business day
because it was a federal holiday (Veterans Day).


8 The Agreement provided that Boehm and her son would resign from their
positions as officers and directors of Comanche upon execution to allow “orderly
appointment of new officers and directors and a smooth transition to new
corporate management and governance.” Agreement at 4, ¶ 8, in Appellant’s App.
at 315.


9 Boehm makes much of the fact that Pickel delivered the check to the Hotel
address when he knew she did not live there, claiming his tender was thus
insufficient, but the Agreement clearly provided the Hotel as the correct location
for all notices to her. She failed to change the location for notices, as the
Agreement clearly allowed. In addition, there is abundant evidence in the record


(continued...)

-4



superior court seeking: 1) a declaratory judgment that she validly terminated the
Agreement and, therefore, it was null and void; and 2) injunctive relief preventing
Pickel from occupying the Hotel or operating a business on the premises (Local
Action). She obtained an ex parte temporary restraining order (TRO)
dispossessing Pickel of the Hotel for four days. Boehm also filed a lis pendens
against the Hotel. Although the Local Action had been on file for several years, it
remained pending when Pickel filed for bankruptcy protection in New Mexico in
2012.10

II. BANKRUPTCY COURT PROCEEDINGS
Several months after Pickel filed his Chapter 11 petition, Boehm filed this
adversary proceeding seeking a declaratory judgment that the Agreement was null
and void. Pickel counterclaimed for breach of contract and slander of title; he
sought specific performance as well as damages for lost revenue and the
attorney’s fees he incurred when forced to quickly litigate the dissolution of the
TRO in order to regain control of the Hotel. Pickel also sought interest expense
on a construction loan he alleged could not be refinanced at a lower rate due to
the pending Local Action, as well as punitive damages. While the adversary was
pending, Pickel transferred all of AVIC’s rights under the Agreement to himself
in his individual capacity and dissolved AVIC.11

The bankruptcy court conducted a trial on the merits, and after hearing the
testimony of Boehm and Pickel and reviewing the exhibits received, entered

9 (...continued)
supporting the bankruptcy court’s finding that Boehm appeared to be evading
Pickel in hopes of defeating his ability to cure the default.


10 The bankruptcy court noted that nothing much had happened in the Local
Action after the TRO was dissolved four days after it was granted. Memorandum
Opinion, 493 B.R. at 266, ¶ 42.


11 As a result, AVIC and debtor Pickel are used interchangeably in some
instances herein.


-5



judgment mostly in Pickel’s favor. Applying the law of the Virgin Islands, which
follows the American Law Institute’s Restatements of the Law, the bankruptcy
court determined that: 1) the Termination Letter Boehm delivered to Pickel on
November 13 was ineffective because November 17 was the actual cure date
under the Agreement; and 2) AVIC tendered a timely and adequate cure of the
payment default prior to the correct cure date sufficient to avoid termination of
the Agreement. The bankruptcy court then held that because Boehm’s actions
constituted an anticipatory breach, the Agreement was still binding. As a result,
it ordered specific performance of the Agreement conditioned upon Pickel making
the final payment.

With respect to Pickel’s counterclaim for breach of contract, the bankruptcy
court overruled Boehm’s claim that she had simply been mistaken in interpreting
the contract (which she thought should excuse her clear anticipatory repudiation).
It determined that her breach of the Agreement had caused Pickel out-of-pocket
damages of $2,800 for lost revenue during the short time AVIC was ousted from
the Hotel. Additionally, as an element of contract damages, the bankruptcy court
awarded $10,000, apparently relying on 5 V.I. Code § 541, a provision of Virgin
Island territorial law that permits recovery of fees in some cases. This
represented the attorney’s fees that the bankruptcy court held AVIC was required
to incur to dissolve the TRO Boehm had improperly obtained in the Local Action.
But the bankruptcy court declined Pickel’s request for interest expense and
punitive damages.

The bankruptcy court also determined that Boehm may have improperly
filed a lis pendens, thereby slandering Pickel’s title to the Hotel. Notwithstanding
that finding, the bankruptcy court declined to award damages for that alleged
slander of title, noting that the lis pendens did not appear to have caused Pickel
any real damage, and that he had made no effort to get it removed.

-6



III. APPELLATE JURISDICTION
This Court has jurisdiction to hear timely filed appeals from “final
judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit,
unless one of the parties elects to have the district court hear the appeal.12
Because neither party elected to have this appeal heard by the United States
District Court for the District of New Mexico, they have consented to appellate
review by this Court. A decision is considered final “if it ‘ends the litigation on
the merits and leaves nothing for the court to do but execute the judgment.’”13
Here, the bankruptcy court’s judgment terminated the adversary proceeding, and
therefore is final for purposes of appeal.

IV. ISSUES ON APPEAL AND STANDARD OF REVIEW
Boehm argues the bankruptcy court erroneously determined both that her
Notice of Default was defective and that she anticipatorily breached the
Agreement. She also claims Pickel failed to tender an adequate and timely cure
of his default, that the bankruptcy court lacked jurisdiction to award attorney’s
fees for the TRO—an action over which it did not preside, and that it erred in
finding she improperly filed a lis pendens against the Hotel.

For purposes of standard of review, decisions by trial courts are
traditionally divided into three categories, denominated: 1) questions of law,
which are reviewable de novo; 2) questions of fact, which are reviewable for clear
error; and, 3) matters of discretion, which are reviewable for abuse of discretion.14
Boehm’s argument that the bankruptcy court was without jurisdiction to award

12 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8002; 10th Cir.
BAP L.R. 8001-3.

13 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (quoting Catlin

v. United States, 324 U.S. 229, 233 (1945)).
14 Pierce v. Underwood, 487 U.S. 552, 558 (1988); see Fed. R. Bankr. P.
8013; Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1370 (10th Cir. 1996).

-7



attorney’s fees is a question of law. De novo review of legal questions requires
an independent determination of the issues, giving no special weight to the
bankruptcy court’s decision. 15 Boehm’s assertions of error with respect to breach
of the Agreement and cure of the default are underpinned by the bankruptcy
court’s factual findings. A factual finding is “clearly erroneous” when “‘it is
without factual support in the record, or if the appellate court, after reviewing all
the evidence, is left with the definite and firm conviction that a mistake has been

made.’”16

V. ANALYSIS OF ANTICIPATORY BREACH OF THE AGREEMENT
A. Defective Notice of Default
Boehm first argues that the bankruptcy court erroneously determined her
Notice of Default was defective,17 and that she anticipatorily breached the
Agreement. The bankruptcy court stated, or at least implied, that the Notice of
Default was defective because it contained an incorrect cure date. But the
bankruptcy court also explained that the Agreement did not require the cure
period to be stated in the Notice of Default, as Pickel was a sophisticated party
capable of determining the correct cure date.

The bankruptcy court also concluded that Boehm was not required to send a
corrected Notice of Default reflecting the correct cure period. 18 Therefore,
Boehm’s assertion that the bankruptcy court erred in determining the Notice of
Default was defective is irrelevant because it is not necessary to its conclusion
that she anticipatorily breached the Agreement. Instead, the critical aspects of the

15 Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991).

16 Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185
(10th Cir. 1990) (quoting LeMaire ex rel. LeMaire v. United States, 826 F.2d 949,
953 (10th Cir. 1987)).

17 Notice of Default, Exhibit F, in Appellee’s App. at 33.

18 Memorandum Opinion, 493 B.R. at 268.

-8



bankruptcy court’s holding regarding anticipatory breach of the Agreement
concern the Termination Letter Pickel received on November 13,19 and Boehm’s

alleged evasion of Pickel’s attempts to cure the default.20

B. Anticipatory Breach
The bankruptcy court held that Boehm’s Termination Letter “was plainly
contrary to the Agreement, and constituted an anticipatory breach of the
Agreement.” 21 To support its conclusion, the bankruptcy court cited United Corp.

v. Reed, Wible and Brown, Inc. 22 and Bennington Foods, L.L.C. v. St. Croix
Renaissance Group L.L.L.P. 23 These two Virgin Islands cases apply §§ 244, 250,
251, 253, and 254 of the Restatement (Second) of Contracts (Restatement), as the
Virgin Islands has statutorily adopted application of the Restatement.24
According to § 250 of the Restatement, a repudiation is:

(a) a statement by the obligor to the obligee indicating that theobligor will commit a breach that would of itself give the obligee aclaim for damages for total breach under § 243, or
19 Termination Letter, Exhibit G, in Appellee’s App. at 34.

20 Boehm suggests Pickel was required to respond to her Notice of Default to
both claim he had a longer period to cure and to indicate his intent to timely cure.
Opening Brief at 12-13. Additionally, Boehm argues that nothing in her Notice ofDefault indicated she was not going to perform. Opening Brief at 13. But it is
the Termination Letter that is the key to repudiation, not the Notice of Default.

21 Memorandum Opinion, 493 B.R. at 268.

22 626 F. Supp. 1255, 1257 (D.V.I. 1986).

23 2010 WL 1608483, at *10 (D.V.I. 2010).

24 The Virgin Islands statute provides as follows:

§ 4 Application of common law; Restatements

The rules of the common law, as expressed in the restatements of the lawapproved by the American Law Institute, and to the extent not so expressed,
as generally understood and applied in the United States, shall be the rulesof decision in the courts of the Virgin Islands in cases to which they apply,
in the absence of local laws to the contrary.

V.I. Code Ann. tit 1, § 4 (2013).
-9



(b) a voluntary affirmative act which renders the obligor unable orapparently unable to perform without such a breach.25
Courts have held that in order to constitute repudiation, the party to a contract
must make an absolute and unequivocal refusal to perform an obligation and that
such obligation must be so essential to the purpose of the contract that
nonperformance makes the agreement worthless. 26 While the Termination Letter
clearly meets these requirements, Boehm argued she could not have repudiated
the Agreement because she had no intent to do so. Instead, she claims because
she was merely mistaken about the Agreement’s default provision, she should not
have been held to have repudiated it.27
The bankruptcy court correctly noted that Comment d to § 250 of the
Restatement cautions that “[g]enerally, a party acts at his peril if, insisting on
what he mistakenly believes to be his rights, he refuses to perform his duty.”28
The bankruptcy court was also not convinced, after having the opportunity to
assess her credibility, that Boehm had merely misinterpreted the default
provision. Instead, it found there had been no “defensible but erroneous”
interpretation, and suggested Boehm may have purposely elected to assert an
interpretation she knew was wrong in an attempt to regain possession of the

Hotel.29

Boehm also maintains that: 1) under § 251 of the Restatement, Pickel was
required to assure her of his intent and ability to perform under the Agreement,

25 Restatement (Second) of Contracts § 250 (1981).
26 McCloskey & Co. v. Minweld Steel Co., 220 F.2d 101, 104 (3d Cir. 1955).
27 Memorandum Opinion, 493 B.R. at 269.
28 Id. at 270 (internal quotation marks omitted).
29 Id.
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and he did not do so;30 and 2) she had no obligation to render performance until
Pickel made the final payment. Boehm concludes that she could not have
breached the Agreement by merely sending Pickel the Notice of Default and
Termination Letter, so it is really Pickel who breached the Agreement, not her.31

As a preliminary matter, it does not appear she made this argument to the
bankruptcy court. Appellate courts consider issues that have not been decided by
the trial court only in rare circumstances not present here. 32 But even were we to
seriously consider this argument, there is no evidence to suggest Boehm made any
demand for an assurance of performance from Pickel. She admits that after she
issued the Notice of Default and the Termination Letter, there was no other
communication between the parties. And frankly, what would she have had
Pickel do to resuscitate the Agreement after she herself deemed the Agreement
terminated, null and void?

As a result, we conclude Boehm has not demonstrated that the bankruptcy
court erred in holding that she anticipatorily breached, or repudiated, the

30 That section of the Restatement provides as follows:

§ 251 When a Failure to Give Assurance May Be Treated as a

Repudiation

(1) Where reasonable grounds arise to believe that the obligor will commita breach by non-performance that would of itself give the obligee a claimfor damages for total breach under § 243, the obligee may demand adequateassurance of due performance and may, if reasonable, suspend anyperformance for which he has not already received the agreed exchangeuntil he receives such assurance.
(2) The obligee may treat as a repudiation the obligor’s failure to providewithin a reasonable time such assurance of due performance as is adequatein the circumstances of the particular case.
Restatement (Second) of Contracts § 251 (1981).

31 Opening Brief at 14-15.

32 In re C.W. Mining Co., 625 F.3d 1240, 1246 (10th Cir. 2010) (citing
Singleton v. Wulff, 428 U.S. 106, 120 (1976)).

-11



Agreement.

C. Tender of Adequate and Timely Cure by Pickel
Under § 253 of the Restatement, a party’s repudiation of a duty under a

contract gives rise to a claim for damages for total breach. 33 But a “party’s duty

to pay damages for total breach by repudiation is discharged if it appears after the

breach that there would have been a total failure by the injured party to perform

his return promise.” 34 As explained in Williston on Contracts,

the party claiming that an anticipatory repudiation has excusedperformance of a condition precedent must show that but for therepudiation, it would have been ready, willing, and able to performits obligations under the contract, at least when the defendant–that is,
the repudiating party–places in issue the ability of the plaintiff toperform.35

Therefore, a critical aspect of this case, and an intensely factual one, is whether
Pickel tendered a timely and adequate cure, or was at least ready, willing, and
able to do so.

Pickel maintained, and the bankruptcy court found, that he both:
1) tendered a check to Boehm’s counsel on November 16, which was refused; and
2) had a check waiting for Boehm to pick up at the Hotel on November 17, and so

33 That section of the Restatement provides:

§ 253 Effect of a Repudiation as a Breach and on Other Party’s Duties

(1) Where an obligor repudiates a duty before he has committed a breach bynon-performance and before he has received all of the agreed exchange forit, his repudiation alone gives rise to a claim for damages for total breach.
(2) Where performances are to be exchanged under an exchange ofpromises, one party’s repudiation of a duty to render performancedischarges the other party’s remaining duties to render performance.
Restatement (Second) of Contracts § 253 (1981).

34 Restatement (Second) of Contracts § 254 (1981).

35 Richard A. Lord, 13 Williston on Contracts § 39:41 (4th ed. 2013)
(footnote omitted).

-12



informed Boehm by leaving a message on her answering machine. 36 Boehm
contends § 254 of the Restatement discharges her duty to pay damages for breach
by repudiation because there is no evidence to support the bankruptcy court’s
findings that Pickel attempted to cure the default. Boehm further argues that,
even if Pickel in fact tendered a check to cure the default, there remains a failure
to perform because he admitted it was drawn on an account with insufficient
funds to cover the payment.37

1. Tender of payment
In determining whether Pickel tendered a timely and adequate cure of the
default, the first dispute concerns the proper place for, or manner of, making that
payment. Although Boehm resided at the Hotel when the parties executed the
Agreement, the parties clearly anticipated she would be vacating the premises
within a couple months, if not sooner. 38 Nevertheless, the Agreement expressly
directs all notices to Boehm be delivered or mailed to her at the Hotel,39 but
provides no place or method for making payment. The Note specifies that Pickel
make payments to Boehm at the Hotel, “or at such other place as the holder
hereof may from time to time designate in writing.”40

The bankruptcy court held that Boehm never designated a different address
for making payments, and Boehm certainly did not testify she did or otherwise
seek to admit a copy of such a written designation at trial. She did testify that
Pickel had made previous payments through the trust account of an attorney

payment of $25,000 was due on November 30, 2007, or when Boehm vacated the

36 Memorandum Opinion, 493 B.R. at 263, ¶¶ 22, 23.
37 Opening Brief at 16.
38 Agreement at 1, ¶ 1, and 4, ¶ 7, in Appellant’s App. at 312, 315. A

premises, if earlier.

39 Id. at 6-7, ¶ 16, in Appellant’s App. at 317-18.

40 Non-Negotiable Promissory Note at 1, in Appellant’s App. at 338.

-13



named Lorin Kleeger, who brought the parties together for the sale transaction.41
As a result of this payment history, she argues Pickel made no good faith attempt
to present the final payment and cure the default because he “failed to utilize the
common course of dealing in making payments” under the Agreement by not
“sending payment to the trust account of his attorney.” 42 This argument is not
persuasive for several reasons.

First, only four payments were due under the Agreement. One payment
was made upon execution of the Agreement, leaving only two other installment
payments before the final payment at issue here. That makes a true “course of
performance” difficult to establish. Second, and more importantly, the Note
expressly provides for payment to Boehm at the Hotel and mentions nothing of an
intermediary. Section 203(b) of the Restatement provides that the express terms
of a contract are to be given greater weight than course of performance and course
of dealing between the parties.43

Pickel testified that on November 16, one day prior to the cure deadline, his

41 Transcript of Proceedings on May 30, 2013 (“Transcript”) at 17-18, in
Appellant’s App. at 64. It should be noted that ¶ 16 of the Agreement providesthat notice to AVIC be given to Lorin M. Kleeger, Esq., suggesting Mr. Kleeger isAVIC’s counsel. Apparently, however, Mr. Kleeger also represents Boehm innumerous matters. Transcript at 48-49, in Appellant’s App. at 95-96.

42 Opening Brief at 16.

43 That section of the Restatement provides:

§ 203 Standards of Preference in Interpretation

In the interpretation of a promise or agreement or a term thereof, the

following standards of preference are generally applicable:

. . .

(b) express terms are given greater weight than course of performance,
course of dealing, and usage of trade, course of performance is givengreater weight than course of dealing or usage of trade, and course ofdealing is given greater weight than usage of trade[.]
Restatement (Second) of Contracts § 203 (1981).

-14



representative attempted to hand deliver a check to Boehm’s attorney, Ezart A.
Wynter, Sr. (“Wynter”), but that Wynter refused to accept it. 44 On appeal, Boehm
argues there is nothing in the record to support the bankruptcy court’s finding that
the cure payment was tendered to Wynter because he “was never called as a
witness to explain the affidavit the [bankruptcy] court relied on to say [ ] Wynter
attempted to avoid receipt of the November 16, 2009 insufficient check.” 45 The
affidavit Boehm refers to was made by Wynter on January 4, 2010, in connection
with her Local Action seeking declaratory judgment and injunctive relief.46

In the affidavit, Wynter stated he was contacted by Pickel’s representative
inquiring about Boehm’s whereabouts and that he indicated he was unaware of
Boehm’s location, and additionally, that he was not authorized to accept any
documents on her behalf. The affidavit states Pickel’s representative “called” on
November 13. It is uncertain whether “called” means contacted in person or by
telephone, or whether the date of November 13 is accurate. What is important is
that Boehm provided no evidence at trial to counter Pickel’s evidence that his
representative tried to tender the final installment payment to her own lawyer,
except that she testified she was in constant contact with her lawyer and would
have known if this had occurred. 47 No one stopped Boehm from calling Wynter to
testify if she wished to rebut Pickel’s version of events.

Further, Pickel testified that he personally left a telephone message for
Boehm on November 16, advising her that the check was available for her to

Transcript at 134-36, 167, in Appellant’s App. at 181-83, 214; Exhibit H,
in Appellee’s App. at 36.

45 Opening Brief at 17.
46 Exhibit AA, Affidavit of Eszart A. Wynter, Sr., in Appellee’s App. at 120.
47 Transcript at 28, in Appellant’s App. at 75.
-15



retrieve at the Hotel on November 17. 48 Pickel also produced a
contemporaneously written and witnessed account of that phone call. 49 Boehm
testified she never received Pickel’s message.50

The bankruptcy judge ultimately did what all trial judges have to do; he
listened to the testimony of Boehm and Pickel and assessed their credibility. For
good reason, Federal Rule of Bankruptcy Procedure 8013 requires that this Court
give due regard “to the opportunity of the bankruptcy court to judge the
credibility of the witnesses.” 51 The bankruptcy court clearly believed Pickel’s
version of the events over Boehm’s version. Accordingly, without any persuasive
corroborative evidence to support Boehm’s version of the events, we must accept
the bankruptcy court’s findings regarding tender of the cure payment.

2. Pickel’s ability to make good on cure payment
Pickel tendered a full cure of the default in the form of a check drawn on
his account at a New Mexico bank. 52 Boehm argues that Pickel admitted his
account had insufficient funds to cover the payment, and that drawing and
delivering a worthless check is a crime.53

At trial, Pickel testified he had made arrangements for a bank loan that
would cover the check he tendered to cure the default. 54 That plan required him
to notify the senior vice president loan officer at his bank the moment Boehm
retrieved the check and to arrange to have the borrowed funds immediately

48 Transcript at 134-36, 154-56, in Appellant’s App. at 181-83, 201-03.
49 Exhibit I, in Appellee’s App. at 37.
50 Memorandum Opinion, 493 B.R. at 263, ¶¶ 22-24.
51 Fed. R. Bankr. P. 8013.
52 Letter and Check dated November 16, Exhibit H, in Appellee’s App. at 36.
53 Opening Brief at 16.
54 Transcript at 135-36, in Appellant’s App. at 182-83.
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wired. 55 Because Boehm was in the Virgin Islands, whereas the check was drawn
on a New Mexico bank, this plan was intended to allow time for funds to be
deposited in the account to cover the check before it was presented. Pickel also
offered into evidence a copy of an email he received on the morning of November
17, from his lawyer arranging this transaction. The email confirmed that the loan
documents had been prepared and the funds had been received.56

Once again, the bankruptcy court believed Pickel’s version of these events,
and found that Pickel credibly demonstrated he was ready, willing, and able to
perform his obligations under the contract. Boehm failed to specifically
contradict any of this evidence. As a result, there is no basis to reverse the
decision.

D. Summary of Anticipatory Breach and Cure of Default
Boehm’s arguments on appeal with respect to breach of the Agreement and
cure of the default are based on her allegations that the bankruptcy court’s factual
findings were erroneous. Under the “clearly erroneous” standard of review,
reversal is appropriate only if such findings are “‘without factual support in the
record, or if the appellate court, after reviewing all the evidence, is left with the
definite and firm conviction that a mistake has been made.’” 57 The only witnesses
appearing at trial were the parties themselves, perhaps because other witnesses
were located in the Virgin Islands. As a result, the amount and type of evidence
received was limited. But, after hearing and assessing the credibility of the
witnesses and reviewing the documentary evidence, the bankruptcy court
concluded that, rather than sincerely trying to collect the final $250,000 payment,

(10th Cir. 1990) (quoting LeMaire ex rel. LeMaire v. United States, 826 F.2d 949,

55 Id. at 154-56, in Appellant’s App. at 201-03.
56 Exhibit CC, in Appellee’s App. at 129.
57 Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185

953 (10th Cir. 1987)).

-17



at some point Boehm became more interested in getting back the Comanche stock
(and thus the Hotel) she had sold to Pickel.58

According to the bankruptcy court, it was possible that to further that goal,
Boehm may have intentionally “misinterpreted” the default provision in the
Agreement, issued the erroneous Notice of Default and Termination Letter and
refused to correct them, and then evaded Pickel’s attempt to cure. 59 As the
bankruptcy court opined, allowing Boehm to regain the stock using this ploy
would be tantamount to a forfeiture, which is disfavored by the law.60

Pickel had already paid $550,000 of the $800,000 purchase price due under
the Agreement. Additionally, Pickel testified he had spent almost $2 million
repairing and improving the Hotel after the Agreement was signed,61 and that the
Hotel was now worth more than double what it had been worth when he signed
the purchase Agreement with Boehm. 62 The stock covered by the Agreement
represented a 42.6% interest in Comanche, and therefore likely had a value in
excess of $2 million. To permit Boehm to regain the stock to satisfy Pickel’s
$250,000 outstanding debt would be inequitable, especially in light of Boehm’s
actions that were contrary to the Agreement.

Our review of the appellate record63 demonstrates that there is more than

58 Memorandum Opinion, 493 B.R. at 264, ¶ 32.
59 Id. at 270.
60 Id. at 271.
61 Id. at 264, ¶ 34.
62 Id. at 264-65, ¶ 35.
63 As to the record on appeal, Pickel filed a Motion to Strike Portions of

Appellant’s Joint Appendix (“Motion to Strike”), complaining about the

documents Boehm submitted in Volumes XII and XIII of her Appendix. But two
days after filing his Motion to Strike, Pickel filed his own Appendix, and itcontains all but two or three of the very exhibits he now seeks to strike fromBoehm’s Appendix. At oral argument, Pickel’s counsel admitted those additional

(continued...)

-18



adequate factual support in the record for those findings. We are not left with the
definite and firm conviction that the bankruptcy court made any mistake in these
findings of fact. Additionally, we note the bankruptcy court appears to have
reached its conclusions regarding anticipatory breach and evasion of cure
attempts, in part, based on Boehm’s pattern of behavior. It did not escape the
bankruptcy court’s attention, or ours, that in addition to this adversary
proceeding, Boehm has been litigating matters related to the Hotel and
Comanche’s stock for 20 years in at least eight other civil actions. 64 We therefore
affirm its decision that Boehm anticipatorily breached the Agreement and that
Pickel tendered an adequate cure of the default, or at least was ready, willing, and
able to do so.

VI. ANALYSIS OF ATTORNEY’S FEES AND LIS PENDENS
A. Attorney’s Fees
The bankruptcy court awarded Pickel $10,000 for the attorney’s fees AVIC
incurred in dissolving the TRO in the Local Action, effectively finding that its
efforts to dissolve the TRO were necessary for AVIC to regain possession of the
Hotel and realize the benefit of its bargain. The bankruptcy court held that those
fees were recoverable not as attorney’s fees per se, but instead as an element of
breach of contract damages. 65 Key to the decision is that the Virgin Islands does
not follow the general “American Rule” that parties bear their own costs,

63 (...continued)
documents were of no consequence to his position on appeal, and indicated his
Motion to Strike could be denied. We conclude the Motion to Strike was ill-
advised as Pickel put essentially identical documents before this court for review
and the few that were not duplicative were immaterial to the appeal.
Accordingly, we deny his Motion to Strike as moot.


64 Memorandum Opinion, 493 B.R. at 264, ¶ 33.

65 Id. at 273.

-19



expenses and fees, absent contractual or statutory provisions to the contrary.66
Instead, under Virgin Islands law, attorney’s fees may be allowed as an element
of costs in the court’s discretion. 67 The bankruptcy court determined that if
Boehm had not breached the Agreement, and had she not sought the TRO, Pickel
would not have incurred the $10,000 in expenses necessary to dissolve the
TRO—classic breach of contract damages.

Boehm misunderstands the character of the award when she argues that the
bankruptcy court “lacks jurisdiction to award attorney’s fees in a case that was
never before the court.” 68 Admittedly, the Virgin Islands statute contemplates
that the judge hearing the case who is familiar with the work involved and the
services rendered has the authority to award such fees. But the bankruptcy court
found credible Pickel’s testimony that he had incurred $25,000 in defending the
Virgin Islands litigation caused by Boehm’s anticipatory breach, and that at least
$10,000 of it was directly attributable to the TRO litigation itself.

Boehm questions the award of $10,000 in damages because Pickel did not
introduce documentary evidence—such as an itemization of hours expended
multiplied by the applicable hourly rate. While it is true that Pickel did not
introduce an itemized accounting of the legal work performed, there is
considerable other evidence in the record supporting the award.

First, the record contains the order dissolving the TRO, which recites that

66 Prosser v. Prosser, 40 F. Supp. 2d 663, 671 (D.V.I. 1998) (holding that
“[i]n the courts of the Virgin Islands[,] the American Rule against shifting fees tothe losing party does not apply”), rev’d on other grounds, 186 F.3d 403 (3d Cir
1999); Anderson v. Bryan, No. ST-08-CV-545, 2013 WL 3215672, at *3 (V.I.
June 24, 2013) (same).

67 V.I. Code Ann. tit 5, § 541 (West 2013). But see Pan Am. Realty Trust v.
Twenty One Kings, Inc., 297 F. Supp. 143, 151 (D.V. I. 1968), aff’d, 408 F.2d 937(3d Cir. 1969) (“The amount to be awarded is wholly within the discretion of thejudge before whom the case has been tried and who is, therefore, familiar with thework involved and the services rendered.”) (emphasis added).

68 Opening Brief at 17.

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AVIC filed an emergency motion to vacate the TRO the day after it was entered,
and also that the hearing on that motion was held only three days later. 69 Pickel
testified he had already paid his attorneys $15,000 in connection with this matter,
and still owed them more. 70 He also testified that the billing rates of his two
attorneys were $250 to $300 an hour, that they “were called out at 7:00 at night
and worked through the night” in order to prepare an emergency motion to quash
the TRO, and then “worked several hours each day that week in preparing for the
hearing” on the TRO. 71 Boehm is simply incorrect that there was no evidence in
the record to support the award.

While an itemized bill might have been more persuasive evidence, the
bankruptcy court clearly found Pickel’s testimony credible and believed that his
attorneys would likely have needed to spend long hours over a very short period
of time to prepare for, and attend, the hearing to dissolve the TRO. And at $250$
300 per hour for his two attorneys, an hourly rate Boehm does not challenge, it
is not difficult to see how AVIC incurred $10,000 in fees.

Boehm knew or reasonably should have known that her election to breach
the Agreement and have Pickel evicted from the Hotel would cause AVIC
damages, including the attorney’s fees required to dissolve the improperly
acquired TRO. There is sufficient evidence in the record to support those fees as
an element of damages for her breach. We decline, therefore, to reverse the
bankruptcy court’s award of $10,000 as an element of contract damages.

69 The Appellee’s Appendix contains pleadings and orders from the Local
Action, including the complaint, amended complaint, affidavit in support of TRO,
order granting TRO, order staying TRO, and order dissolving TRO. See Exhibits
O through T, in Appellee’s App. at 58 to 78. Boehm obtained the ex parte TROon Monday, December 14, 2009, and delivered it to Pickel that same evening. By

9:00 a.m. the next morning, Pickel filed the emergency motion to dissolve orvacate the TRO. The actual hearing on the TRO was held four days later.
70 Transcript at 194-96, in Appellant’s App. at 241-43.

71 Id. at 195, in Appellant’s App. at 242.

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B. Improper Filing of Lis Pendens
Boehm’s final argument is that the bankruptcy court erred in finding that
she improperly filed a lis pendens against the Hotel. The bankruptcy court stated,
or at least implied, the filing of the lis pendens was improper because Boehm had
no personal claim against the property, as any claim would be held by the
corporation, itself, not by her as an individual shareholder. Boehm’s lis pendens
argument is irrelevant to her appeal, however, because the bankruptcy court
declined to award any damages in connection with Pickel’s counterclaim for
slander of title.72

VII. CONCLUSION
Boehm’s appeal of the bankruptcy court’s decision, which held that the
Agreement remained in full force and effect, and thus both parties were entitled to
specific performance of all their rights under the Agreement, is ultimately based
on her disagreement with that court’s factual findings. We cannot say that those
findings, essentially that Boehm repudiated the Agreement and Pickel tendered a
timely and adequate cure, are clearly erroneous. Therefore, the bankruptcy
court’s order is hereby AFFIRMED.

Memorandum Opinion, 493 B.R. at 274.
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